01-2-9811 Hill v. New Jersey Racing Commission, App. Div. (per curiam) (12 pp.) Hill appeals from a final determination of the New Jersey Racing Commission, which disqualified her horse, “JS,” from his win in a race held at the Meadowlands Racetrack on June 13, 2009, and ordered that the purse be redistributed. The appellate panel finds Hartman v. New Jersey Racing Commission is factually distinguishable and Hill’s reliance on that decision is misplaced. On May 6, 2008, JS tested positive for the presence of Darbepo, an illegal blood-doping substance, and was placed on the New Jersey Steward’s List. That information was noted on the USTA’s electronic database. Hill purchased JS in early 2009. Although notification that JS had been placed on the New Jersey Steward’s List was deleted from the USTA’s database in error at some point before the horse ran in the race at the Meadowlands on June 13, 2009, there is no evidence that this information was deleted from the USTA database before Hill purchased the horse. Thus, Hill was properly charged with notice that JS had been placed on the Steward’s List and could not race in New Jersey until he was retested here under the supervision of New Jersey’s racing officials. The panel concludes that the commission did not abuse its discretion by disqualifying JS and ordering Hill to forfeit the purse won in the June 13, 2009, race. [Decided May 2, 2013.]
01-2-9877 Slurka v. Board of Review, App. Div. (per curiam) (6 pp.) In light of the apparent misunderstanding between plaintiff, an adjunct instructor, and Ocean County College, her employer, as to whether she had resigned or was requesting a short-term absence following the birth of her child, which resulted in her not being allowed to return to teach the remainder of the fall semester, the panel finds that there is insufficient support for the board’s finding that she had she left her job voluntarily and it reverses the denial of unemployment benefits. [Decided May 8, 2013.]
03-2-9812 Lerner v. Heidenberg, App. Div. (per curiam) (15 pp.) Plaintiff Stephen Lerner appeals from an order granting defendant Robert Heidenberg’s motion to compel arbitration. Plaintiff and defendant were partners in Lerner-Heidenberg Associates (LHA). Paragraph 13 of their partnership agreement contains an arbitration clause. The parties had a falling out. Rather than pursuing arbitration, plaintiff filed a complaint in the Chancery Division seeking to dissolve LHA. After the parties failed to reach a settlement through mediation, defendant filed a motion to compel arbitration and stay or dismiss the remaining LHA-related proceedings. Plaintiff opposed this request and argued that defendant had waived his right to compel arbitration by “aggressively litigating” the matter in the Chancery Division. The appellate panel affirms, finding no basis to disturb Judge Carroll’s well-supported conclusion that defendant had not waived his right to seek arbitration. Plaintiff initially alleges that defendant waived arbitration when he failed to raise it in his answer. However, the failure to raise arbitration as an affirmative defense is not dispositive on the issue of waiver. Plaintiff also alleges that defendant waived his right to arbitration through his litigation conduct. However, defendant notified plaintiff of his intention to compel arbitration less than four months after plaintiff filed his complaint and six weeks later, after mediation failed, defendant filed a formal motion to compel arbitration. Further, defendant’s conduct did not trigger the extraordinary remedy of judicial estoppel. [Decided May 2, 2013.]
07-2-9878 Jones v. Bey, App. Div. (per curiam) (12 pp.) In a prior opinion in plaintiff’s personal-injury action, the court approved a structured settlement in favor of the minor-plaintiff. His then-counsel disbursed $647,156.96 of his funds to Wadia Hill as guardian for the minor. She deposited the funds into a guardianship account at Wachovia’s predecessor, then withdrew $350,000 and deposited that sum into her personal account and then paid the attorney $280,000 from that account. Wells Fargo, as successor to Wachovia Bank and as assignee of Ann Herrera, the state of Georgia conservator for the minor, appeals from the Law Division order denying its motion for relief in aid of litigant’s rights under Rule 1:10-3 attempting to recover those funds. The panel reverses, clarifying that when it noted in the earlier opinion that Wachovia could file a separate motion in aid of litigant’s rights against “defendants” in the personal-injury action, it was referring to the attorney and his affiliated law firms; finding that the gravaman of Wells Fargo’s motion is to determine whether the attorney and his firms distributed a portion of the minor’s settlement proceeds and that Rule 1:10-3 is the proper means of confirming compliance with the court’s order approving the settlement; and finding that there was sufficient proof that Wells Fargo was the recipient of an assignment of the interests of the minor and the minor’s conservator. The matter is remanded for further proceedings. [Decided May 8, 2013.]
07-2-9845 Mazie Slater Katz & Freeman v. Krugman, App. Div. (per curiam) (6 pp.) This appeal arises out of a federal class-action suit against an insurance carrier filed by plaintiff-law firm on behalf of a class of New Jersey dentists complaining of inadequate reimbursements. Defendant in this appeal, Gary Krugman, was a member of the class represented by plaintiff. In the federal action, Krugman filed an objection to the settlement limited to the fees sought by class counsel. The district court granted final approval to the settlement and approved counsel’s fee request. Defendant appealed from the counsel fee award to the Third Circuit. The appeal has been submitted to a panel and remains pending. Because of that pending appeal, class counsel has not been paid its fee award. Plaintiff sued Krugman in Superior Court alleging that the appeal constitutes tortious interference with plaintiff’s contract with Delta Dental of New Jersey Inc. and tortious interference with plaintiff’s prospective economic advantage in receiving its fee award. Defendant moved to dismiss the complaint in lieu of an answer and sought sanctions and attorney fees. The trial judge dismissed the complaint without prejudice pending the outcome of the pending federal appeal. The procedural and substantive merits of defendant’s objection are currently under consideration by the Third Circuit. The appellate panel agrees that the Superior Court should decline to hear this matter until the parties had exhausted their federal remedies. [Decided May 6, 2013.]
46-2-9824 Raeford v. Bozinovski, App. Div. (per curiam) (12 pp.) Plaintiff appeals from an order granting the motion for summary judgment of defendants Jane Bozinovski, a probation officer, and the Essex County Probation Division. Plaintiff’s lawsuit stems from his arrest and incarceration on a warrant for nonappearance at a child-support enforcement hearing that had been previously canceled by the court, but remained active in the law enforcement database. The trial judge found that the two state defendants were not “persons” subject to the New Jersey Civil Rights Act. The appellate panel affirms, finding Probation and Bozinovski, acting within her official capacity as a probation officer, were fulfilling a state governmental function, and therefore do not fall within the meaning of “persons” under the act. [Decided May 3, 2013.]
15-2-9825 Janak Corporation v. Shree Hari Harshketu Corporation, App. Div. (per curiam) (21 pp.) Defendant entities, Shree Hari Harshketu Corporation and Shree Ganesh Harshketu, L.L.C. (the borrower), purchased the assets of a business and land from plaintiff Janak Corporation. The borrower arranged for (1) primary financing from Commerce Bank, N.A., n/k/a TD Bank, N.A., in the amount of $1 million (primary loan), and (2) subordinate financing provided by plaintiff of $300,000 (subordinate loan). The subordinate loan is evidenced by a $300,000 promissory note executed by the borrower in favor of plaintiff. As a condition of the subordinate loan, plaintiff required defendants to execute an individual guaranty of the $300,000 indebtedness. After the subordinate loan matured, but was not paid, plaintiff filed an action against the borrower, defendants, and TD Bank to enforce its rights under the subordinate loan. Defendants Atul Patel and Haripriya Patel appeal from an order granting summary judgment against them for $300,000, plus contractual interest and attorney fees. The appellate panel affirms, finding the court correctly concluded that there was no ambiguity in the guaranty, which by its express terms establishes an unconditional obligation on the part of the individual defendants to guarantee payment of the borrower’s outstanding indebtedness on the subordinate loan. The guaranty, as the trial judge properly concluded, allowed plaintiff to proceed directly against the individual defendants to collect payment of the outstanding indebtedness due on the subordinate loan, without first proceeding against the borrower. [Decided May 3, 2013.]
15-2-9864 RJM Acquisitions, L.L.C., Assignee of Wachovia Bank, N.A. v. Ngo, App. Div. (per curiam) (7 pp.) Defendant appeals from two Special Civil Part orders, denying, for a second time, his request to vacate or amend a judgment in favor of plaintiff RJM Acquisitions as assignee of Wachovia Bank, and ordering turnover of levied funds. Defendant deposited a $4,750 check into his Wachovia checking account. He then withdrew the same amount. The check was returned by the drawee bank because the account drawn on held insufficient funds to satisfy the account. Wachovia charged defendant’s account with the amount of the returned check plus applicable fees. Defendant’s account was short of funds, resulting in a negative account balance of $3,746.49. When defendant failed to remit payment, Wachovia closed his checking account and assigned the receivable to plaintiff, who commenced this collection action. Defendant challenges the entry of summary judgment, asserting a trial was necessary as he believes he has a defense to plaintiff’s collection action. Defendant was the victim of a sweepstakes scam and apparently believes that since he was bilked, he has no obligation to repay Wachovia. Finding defendant’s arguments are procedurally flawed and substantively without merit, the appellate panel affirms the orders, agreeing with the trial court that the bank is entitled to return of the funds and has properly proceeded to collect its debt. [Decided May 7, 2013.]
15-2-9879 Midland Funding, L.L.C. v. Igiebor, App. Div. (per curiam) (3 pp.) Plaintiff filed a complaint in the Special Civil Part, alleging that defendant had defaulted on a credit card, that the account had been assigned to plaintiff, and that the amount of $532.64 plus prejudgment interest was due and owing. Defendant filed an answer and counterclaim, seeking $5 million in damages. Plaintiff filed a motion to dismiss the counterclaim on the grounds that the counterclaim failed to state a claim and the amount sought exceeded the $15,000 jurisdictional limit of the Special Civil Part. Defendant then filed the first of many motions to dismiss plaintiff’s complaint. Orders were entered on the motions on the same day by two different judges. One order dismissed defendant’s counterclaim with prejudice. The other order dismissed her counterclaim without prejudice for lack of jurisdiction in the Special Civil Part and failure to state a claim. Defendant filed a notice of appeal. Plaintiff’s motion to dismiss the appeal as interlocutory was denied without prejudice because the record was inadequate to determine whether the orders were interlocutory. On plaintiff’s motion, the court entered an order that suppressed defendant’s answer with prejudice and entered judgment in favor of plaintiff. Thereafter, defendant filed a motion seeking to reverse the order. Finding the orders appealed from were interlocutory in nature, the appellate panel dismisses defendant’s appeal. [Decided May 8, 2013.]
14-2-9832 Grohs v. New Jersey Department of Corrections, App. Div. (per curiam) (4 pp.) Appellant Steven Grohs appeals from the final agency decision of respondent New Jersey Department of Corrections (DOC), which denied his claim for lost, damaged or destroyed personal property. Grohs was an inmate at South Woods State Prison. He was transferred to the Adult Diagnostic Treatment Center in Avenel. Approximately three weeks after the transfer, SWSP shipped Grohs personal property to the ADTC. When Grohs opened his packages, he discovered that his television was damaged and 18 items of personal property were missing. Because it was not clear that Grohs could appeal from the administrator’s denial of his claim for reimbursement for lost, damaged or destroyed personal property, the appellate panel reverses and remands this matter to the administrator to consider Grohs’ appeal. [Decided May 3, 2013.]
14-2-9833 State v. Rodgers, App. Div. (per curiam) (19 pp.) Defendant appeals from his judgments of conviction for receiving stolen property and obstruction. Defendant claims that the trial court should have instructed the jury on unlawful taking of a means of conveyance, which he asserts is a lesser offense of receiving stolen property. Defendant attacks his obstruction conviction, claiming error relating to the sufficiency of the evidence, the indictment, and the jury instructions and verdict sheet. Defendant argues that the indictment describes the arresting officer, Officer Lawson, as employed by the Princeton Borough Police Department, but he was employed by Princeton University. Defendant argues that obstructing a patrolman employed by a private university cannot prevent “a public servant from lawfully performing an official function.” Defendant argues that the judge directed a verdict because he inaccurately described Officer Lawson as “Patrolman Alan Lawson of the Princeton Borough Police Department” when he read the verdict sheet during his instructions. Defendant also asserts that his sentence was excessive. The appellate panel affirms defendant’s conviction and sentence for receiving stolen property. Finding errors in the jury instructions and verdict sheet, the panel vacates defendant’s conviction and sentence for obstruction, and remands for a new trial on the obstruction charge. [Decided May 3, 2013.]
14-3-9856 In re Grand Jury Subpoena, Law Div. — Union Co. (Cassidy, J.S.C.) (23 pp.) In this action, Tina Renna seeks to quash a grand jury subpoena compelling her to testify concerning her knowledge of county employees who allegedly used county generators for personal use in the aftermath of Hurricane Sandy. Renna is the primary writer and editor of a blog titled “The County Watchers,” which is contained on the website of the Union County Watchdog Association, a nonprofit 501(c)(3) organization of which Renna is president. The court quashes the subpoena, finding that it seeks privileged information protected by the newsperson’s privilege, N.J.S.A. 2A:84-21. [Decided April 12, 2013.]
14-2-9886 State v. Dority, App. Div. (per curiam) (10 pp.) After defendant, charged with possession of CDS and possession with intent to distribute, successfully moved to suppress the evidence, the state, by leave granted, appealed. The panel reverses, finding that the evidence was seized incident to a lawful arrest since the police had probable cause to arrest where, although they did not wait until defendant exited the identified car so that they could confirm that he matched the physical description given by a first-time confidential informant, events unfolded precisely in accordance with the monitored telephone calls between the informant and the suspect, demonstrating the informant’s veracity. [Decided May 8, 2013.]
17-2-9813 Hudson County Improvement Authority v. Michaels, App. Div. (per curiam) (7 pp.) Defendant appeals from the Special Civil Part order adjudicating him in violation of N.J.A.C. 7:26-3.4(b), which requires that certain solid waste be disposed of at an approved facility. The panel reverses, finding that while there is no question that defendant was dumping solid waste, he did not do so in violation of 7:26-3.4 because he was transporting his own solid waste using a pickup truck and trailer that he testified were below the weight specified in the regulations, which plaintiff did not contest, and he therefore was exempt from the prohibition contained in 7:26-3.4(b). Moreover, plaintiff’s plan specifies waste generated in Hudson County and the evidence is that defendant had emptied a storage unit in Union County. [Decided May 2, 2013.]
17-2-9826 Ponzio’s Kingsway Real Estate, L.L.C. v. Mark, App. Div. (per curiam) (13 pp.) In this action alleging violations of the Spill Compensation and Control Act and the Water Pollution Control Act in connection with contamination that migrated from an adjacent property now owned by the South Jersey Chinese Community Center Inc. onto plaintiff’s property, the SJCCC appeals from orders denying its motion to vacate the default judgment and granting plaintiff’s cross-motion in aid of litigant’s rights. The panel holds that the SJCCC has not shown excusable neglect and, therefore, its motion to vacate the default judgment under Rule 4:50-1(a) was properly denied. However, because the judge made no specific findings with respect to SJCCC’s proffered defenses, or whether they were sufficient to establish such “exceptional circumstances” as to warrant relief from the sizable judgment entered against SJCCC, the panel remands to permit the court to consider SJCCC’s motion to vacate the default judgment under Rule 4:50-1(f). On remand, the judge should consider the defenses proffered by SJCCC and, in light of its status as a not-for-profit entity to whom the adjacent property was purportedly donated, the court may choose to consider the availability of other remedies in lieu of entering a substantial damages award. [Decided May 3, 2013.]
20-2-9865 A.M.A. v. M.B., App. Div. (per curiam) (11 pp.) In this unopposed matter, defendant M.B. appeals from an order entered in the Family Part granting a final restraining order (FRO) against her pursuant to the Prevention of Domestic Violence Act. The parties were college roommates when the incident leading to the issuance of the FRO occurred. The appellate panel reverses and vacates the FRO against defendant. Even assuming that defendant struck plaintiff as asserted, the record is devoid of any analysis of whether entry of restraints is “necessary” to protect plaintiff from harm. Given the lack of proof of any prior history of conflict or immediate danger, and given the proof of separate living arrangements, there is no evidence to support any finding that a situation such as this would recur or that the restraining order is necessary for the future protection of plaintiff. [Decided May 7, 2013.]
25-2-9866 New Jersey Division of Youth and Family Services v. T.C., App. Div. (per curiam) (3 pp.) Defendants appeal from the order concluding that they placed their children at risk of harm, arguing that DYFS failed to prove that they were unable to ensure the health and safety of their children. The law guardian agrees that the court’s finding was unsupported by the record and DYFS does not oppose reversal of the court’s finding and takes no position on whether to remand for consideration of the parents’ application for return of custody. Given the lack of adversity between the parties, the panel reverses the court’s fact-finding order and remands for consideration of any applications regarding custody that the parents may file. [Decided May 7, 2013.]
20-2-9846 E.C. v. C.B.T., App. Div. (per curiam) (13 pp.) Defendant appeals from a final restraining order (FRO) entered against him in favor of plaintiff under the Prevention of Domestic Violence Act. Defendant argues the evidence did not support the judge’s ruling that he had committed the predicate act of stalking and that the judge failed to find that the FRO was necessary to protect plaintiff from domestic violence. The appellate panel agrees and reverses, finding the record does not demonstrate that defendant engaged in the “course of conduct” required to establish the predicate offense of stalking, and the judge did not find the restraints were necessary to protect plaintiff from immediate danger or further acts of domestic violence. [Decided May 6, 2013.]
20-2-9847 J.M.F. v. G.M.F., App. Div. (per curiam) (8 pp.) Defendant G.M.F. appeals from the Family Part order denying his motion to dissolve a final restraining order (FRO) entered against him on a domestic-violence complaint filed by his former wife, plaintiff J.M.F., pursuant to the Prevention of Domestic Violence Act. The appellate panel reverses and remands for a plenary hearing. The assertions made by defendant in his moving papers were sufficient to provide prima facie support to dissolve the FRO for good cause under the act. The material facts as to the ongoing need for restraints were sharply disputed in plaintiff’s submitted papers. In turn, defendant refuted the contentions of plaintiff in his reply certification. The issue of plaintiff’s fear, and defendant’s control and dominion over plaintiff, need to be explored at the plenary hearing. [Decided May 6, 2013.]
20-2-9880 L.A.B. v. D.L.P., App. Div. (per curiam) (12 pp.) Plaintiff appeals from the denial of reconsideration of an order denying her request for grandparent visitation with her granddaughter under the Grandparents and Siblings Visitation Statute because she had failed to show the potential for particularized harm to the child from lack of grandparent visitation. Plaintiff’s motion for grandparent visitation repeated allegations of abuse and neglect that she had made in an earlier complaint for custody, supported by alleged new evidence. Plaintiff repeatedly invokes the “best interests of the child” standard used in custody and visitation disputes between parents. That was the standard originally employed in the visitation statute. However, the U.S. Supreme Court found unconstitutional a state statute that similarly allowed grandparents to obtain visitation if in the “best interests of the child.” To save its visitation statute from constitutional infirmity, the New Jersey Supreme Court ruled that the best interest standard was inapplicable in making the determination whether a grandparent could obtain visitation. Plaintiff attempts to show harm by alleging that the child’s mother and father are bad parents who abuse and neglect their child. Such allegations may be a basis for seeking custody, but plaintiff withdrew her request for custody. She is instead seeking grandparent visitation, for which the showing of harm is different. Thus, the judge did not abuse his discretion in denying the motion. [Decided May 8, 2013.]
23-2-9881 Muhammad v. Elizabeth Yellow Cab Inc., App. Div. (per curiam) (15 pp.) Defendants Ocean Risk Retention Group Inc. and Crawford & Company appeal from the order that denied their cross-motion to dismiss the count of plaintiff’s complaint seeking personal injury protection (PIP) benefits. Ocean and Crawford contended that plaintiff had not filed his amended complaint against them within the statute of limitations for PIP claims. The appellate panel agrees with defendants that the court misinterpreted the statute. The court, however, did not address the issue of whether defendants were equitably estopped from asserting the statute. Because there is evidence of misleading or dilatory conduct on the part of Ocean and Crawford, plaintiff is entitled to have the trial court consider the doctrine of equitable estoppel. The appellate panel reverses the trial court’s decision that the statute of limitations did not begin to run until after plaintiff incurred his last medical expense and remands for a determination as to whether the doctrine of equitable estoppel bars defendants from asserting the statute of limitations. [Decided May 8, 2013.]
25-2-9814 Gitto v. City of Atlantic City, App. Div. (per curiam) (19 pp.) Defendants Atlantic City and the Atlantic City Beach Patrol hired plaintiff as a lifeguard in 1977. In 2005, the mayor appointed plaintiff to the Beach Patrol Pension Commission, and promoted him to lieutenant. The American Federation of State County and Municipal Employees (AFSCME) filed a grievance, claiming defendants failed to post the job opening in violation of the collective-bargaining agreement (CBA). Plaintiff filed a counter-grievance. The city settled AFSCME’s grievance by agreeing to rescind plaintiff’s promotion. The city also removed plaintiff from his nonsalaried position on the commission. Plaintiff’s grievances were denied and his union declined to pursue his claims. Plaintiff filed a complaint alleging violations of the federal and state constitutions, the New Jersey Civil Rights Act, breach of contract, breach of the implied covenant of good faith and fair dealing, and intentional infliction of emotional distress. Plaintiff settled his claims against the union defendants. The appellate panel finds summary judgment was properly granted to the city defendants where they complied with the procedures in the employment contract and the CBA. The individual city defendants were entitled to qualified immunity. No adverse employment action occurred. Plaintiff failed to submit sufficient evidence to support a claim of hostile work environment. Also, plaintiff’s removal from the commission falls within the “policymaking” exception to the prohibition on political affiliation discrimination. [Decided May 2, 2013.]
25-2-9815 Harris v. County of Essex, App. Div. (per curiam) (12 pp.) Plaintiff appeals from the grant of summary judgment dismissing his action alleging that his salary since he was rehired after being terminated because of budgetary cutbacks has been less than the compensation paid to employees with lower civil service grades and less experience, which he attributed to age discrimination. The panel affirms, finding that the discrimination claim was barred by the two-year statute of limitations governing LAD claims. Moreover, the panel says that he failed to establish a prima facie case of age discrimination since he failed to proffer any evidence that the county sought another person to perform the same work after he was laid off, nor was evidence presented sufficient to rebut the county’s legitimate nondiscriminatory reason for plaintiff’s layoff, i.e., budgetary constraints. [Decided May 2, 2013.]
25-3-9816 Reilly v. Village of Ridgewood, Law Div. — Bergen Co. (Toskos, J.S.C.) (27 pp.) In this action in which the jury rendered a verdict in favor of plaintiff-firefighter that defendant had violated the Conscientious Employee Protection Act and awarded emotional distress damages of $3.5 million, defendant moves for judgment notwithstanding the verdict, a new trial or, in the alternative, remittitur. The court denies the motion for JNOV, finding that under the totality of the circumstances, plaintiff established a violation of CEPA and that he provided evidence of emotional distress. The court denies the motion for a new trial, finding that the jury award itself does not rise to the level to warrant a new trial, the length of deliberations does not indicate that the jury failed to conduct a reasonable deliberation, and the court did not err in refusing to admit plaintiff’s medical records. The court grants the motion for remittitur, finding the $3.5 million award to be a shocking verdict. Analyzing the case law provided, considering the testimony and feel for the case, under the totality of the circumstances, the court determines that the emotional damage award should be remitted to $500,000. It also determines that plaintiff’s attorney shall be awarded fees at $250 per hour. [Decided May 2, 2013.]
25-2-9848 Cioffi v. County of Hudson, App. Div. (per curiam) (12 pp.) Plaintiff was employed as a lieutenant in the now-defunct Hudson County Police Department. In April 1995, he was removed from his position but his reinstatement was ordered following an administrative hearing. Plaintiff initiated an action alleging “he was targeted with unwarranted disciplinary charges and subjected to the constant threat of termination as a result of his unwillingness to participate in certain illegal activities which ultimately led to the Hudson County Police Department being disbanded” (the civil rights action). Plaintiff and defendant Hudson County reached a settlement. Here, plaintiff appeals from an order denying his motion to enforce the terms of the settlement agreement. Plaintiff alleged defendant violated the agreement by refusing to immediately fund his pension and wrongfully delaying funding by insisting he execute a voucher. The motion judge found plaintiff’s enforcement request was barred by the statute of limitations, and that he had failed to prove defendant’s breach. The appellate panel affirms in part and remands in part. The panel finds untimely plaintiff’s assertion that the settlement agreement was breached because of the requirement of a voucher. As to the breach claim, it appears a claim arising because funding was not remitted immediately following plaintiff’s filing of his pension request would not have been barred. A remand is required for further consideration. [Decided May 6, 2013.]
25-2-9827 Szakacs v. Board of Trustees, Public Employees’ Retirement System, App. Div (per curiam) (12 pp.) Edward Szakacs, who had been employed as the business manager at the Department of Human Services, Division of Developmental Disabilities, North Jersey Developmental Center (NJDC) and who returned as a consultant after his retirment, appeals from the final decision of the PERS board of trustees that determined he did not have a bona fide retirement from the NJDC and consequently required him to return $208,545.09 in retirement benefits received and determined that he was not entitled to the three additional years of service he had received through the Early Incentive Retirement Program. The panel affirms, finding that appellant has not shown how the administrative law judge’s conclusion that he returned to PERS covered employment was arbitrary or unreasonable and since he returned to NJDC before the requisite 30-day separation period expired and his annual compensation in that position exceeded $15,000, the board’s decision was amply supported by credible evidence and was not arbitrary, capricious or unreasonable. [Decided May 3, 2013.]
26-2-9828 Hillsborough Properties, L.L.C. v. Township Committee of Hillsborough Twp., App. Div. (per curiam) (6 pp.) Plaintiff, the owner of more than 300 acres of property in the township’s economic development district, which excludes residential development, appeals from the dismissal with prejudice of its action in lieu of prerogative writs challenging, as applied, the zoning district on the basis that it rendered plaintiff’s property inutile. The panel affirms, substantially for the reasons expressed below. It adds that there was ample evidence to support the judge’s conclusion that plaintiff’s proofs did not surmount the formidable threshold of showing the arbitrariness, capriciousness or unreasonableness of the zoning decision and the judge’s use of the township’s expert’s opinion was not a misuse of his discretion. [Decided May 3, 2013.]
26-2-9829 62-64 Main Street, L.L.C. v. Mayor and Council of the City of Hackensack, App. Div. (per curiam) (9 pp.) Plaintiffs 62-64 Main Street, L.L.C., and 59-61 Moore Street, L.L.C., appeal from a judgment affirming Hackensack’s designation of plaintiffs’ properties as an area in need of redevelopment pursuant to the Local Redevelopment and Housing Law (LRHL). Plaintiffs also appeal from the order denying reconsideration. The appellate panel finds the trial judge and the city misapplied the New Jersey Supreme Court’s decision in Gallenthin Realty Development Inc. v. Borough of Paulsboro. Gallenthin reaffirmed that the New Jersey Constitution requires a finding of actual blight before private property may be taken for purposes of redevelopment. Because this constitutionally mandated finding was not made here and the factual findings that were made do not support it, the appellate panel reverses. [Decided May 3, 2013.]
26-2-9849 Asarnow v. City of Long Branch, App. Div. (per curiam) (17 pp.) Plaintiff, who operates a business on commercial property in Long Branch, filed an order to show cause and a verified complaint in lieu of prerogative writs seeking to void the zoning permit issued by the city’s zoning officer permitting the owner of adjacent lots to continue to operate a paving company, to compel enforcement of a notice of violation that the city had issued to that owner, and to enforce no-parking zones on the street where his business is located. The panel affirms the trial court’s refusal to grant preliminary injunctive relief, its discharge of the order to show cause and its dismissal of the complaint with prejudice based on plaintiff’s failure to implead indispensable parties and failure to exhaust administrative remedies, noting that he did not implead the planning board in the action in lieu of prerogative writs, failed to appeal the zoning officer’s issuance of the permit to the zoning board, and the city never approved the no-parking zones. [Decided May 6, 2013.]
26-2-9882 Dazar Inc., t/a Love Rock Tattoo v. City of North Wildwood Zoning Board of Adjustment, App. Div. (per curiam) (11 pp.) Plaintiff leased the subject property at 2301 Boardwalk in the Amusement Zone (Zone A) of Wildwood’s Boardwalk. Prior to plaintiff’s tenancy, Florence Harris operated a business where she provided body piercing and tattooing services on the property, starting in 1991. Harris was required yearly to obtain a separate mercantile license for each activity. In 1994, the city passed an ordinance prohibiting tattooing and body piercing in Zone A. However, both practices were grandfathered in as nonconforming uses on the property. Harris applied for a renewal of her tattooing license but not for her body-piercing license in 2004. Here, plaintiff appeals from the judgment of the Law Division affirming the North Wildwood Zoning Board of Adjustment’s finding that the nonconforming use of body piercing had been abandoned at the property. The appellate panel finds plaintiff’s argument that the nonconforming use had not been abandoned as a matter of fact or law is without merit. Harris’ failure to renew the body-piercing license was an objective manifestation of Harris’ intent, carrying a sufficient implication that Harris neither claimed nor retained any interest in the nonconforming use of body piercing. As such, the use was abandoned prior to plaintiff’s tenancy. [Decided May 8, 2013.]
04-2-9851 Wolf v. Galex, App. Div. (per curiam) (16 pp.) This appeal arises from litigation between two attorneys over the dissolution of their former law firm. Wolf appeals from the order denying his motion to compel arbitration and denying his motion to reconsider an order setting aside the settlement agreement that contained the arbitration clause. The panel concludes that the parties reached a meeting of the minds on the essential terms and agreed to settle the underlying litigation and that the settlement required arbitration of any dispute arising under the settlement. It therefore reverses the order denying Wolf’s motion to compel arbitration and remands the matter to the trial court for entry of an order enforcing the arbitration clause. [Decided May 6, 2013.]
34-2-9852 U.S. Bank N.A. v. Cole, App. Div. (per curiam) (11 pp.) In this mortgage foreclosure case, defendant appeals from the denial of her motion to vacate the default judgment, contending that plaintiff lacked standing to foreclose on the property. The panel affirms, finding that defendant is not entitled to relief under Rule 4:50-1(a) because she filed her motion to vacate beyond the one-year limitation and has not shown excusable neglect and a meritorious defense where plaintiff properly obtained final judgment, the sale was repeatedly adjourned to allow for mediation, and defendant waited 19 months to move to vacate; she is not entitled to relief under Rule 4:50-1(d) because her motion was untimely and equitable considerations justify rejection of her belated attempt to raise a defense where she does not deny responsibility for the debt, waited to file her motion until numerous attempts at mediation failed, and provided no reasonable explanations for the delay. Moreover, plaintiff showed that it owned or controlled the underlying debt and fully complied with Rule 4:64-1(b)(10). [Decided May 6, 2013.]
34-2-9868 Simone v. Nassau Tower Realty, L.L.C., App. Div. (per curiam) (26 pp.) The tenant-plaintiff appeals from orders denying his motion and granting the motion of defendant-landlord to enforce their settlement agreement relating to the exercise of the tenant’s purchase option by a strict deadline. The orders terminated plaintiff’s right to purchase the condominium unit and discharged a lis pendens filed against the property. The trial court concluded that plaintiff breached the time-of-the-essence provision of the purchase option by failing to appear on the designated closing date. Plaintiff argues that the settlement agreement required defendant to provide an amendment to the master deed as a condition precedent to closing, but defendant failed to do so. The appellate panel agrees that defendant’s enforcement of the time-of-the-essence provision required its own strict compliance with that condition. Because defendant did not obtain an executed amendment of the master deed until the day after the scheduled closing, the panel reverses and remands to the Chancery Division to consider the application of either party to fix a 30-day deadline within which plaintiff may exercise his option to purchase the property at the price established in the settlement agreement, or relinquish his purchase option. [Decided May 7, 2013.]
34-3-9883 Fuhrman v. Erickson, Law Div. — Hunterdon Co. (Buchsbaum, J.S.C.) (13 pp.) This action stems from a real estate contract between plaintiffs (buyers) and defendants (sellers). Plaintiffs placed $59,750.00 into a noninterest-bearing account with their attorney as a deposit. After a dispute arose over home inspection issues, plaintiffs wrote to defendants stating they were going to exercise their right to terminate the contract under the home inspection provisions. Defendants refused to release the deposit. Plaintiffs filed a complaint for breach of contract. Defendants filed counterclaims against plaintiffs. The contract does not indicate that the buyers’ requested repairs and replacements related to home inspection issues must amount to a certain level of reasonableness or fall within an appropriate price range. The contract simply provides that any physical defects or environmental conditions reported by the qualified inspector to the sellers shall be corrected or cured. Additionally, the contract contains a termination clause that allows the parties to terminate the contract in the event that they are unable to agree to a resolution of the home inspection issues. Because there was a difference in opinion between the parties in resolving the home inspection issues, plaintiffs were within their rights to terminate the contract and defendants were obligated to return plaintiffs’ deposit. Defendants’ failure to authorize the release of the funds was a breach of the contract. Plaintiffs’ motion for summary judgment is granted. Defendants’ counterclaims are dismissed. [Decided May 3, 2013.]
35-5-9830 Estate of Shinn v. Dir., Div. of Taxation, Tax Ct. (Sundar, J.T.C.) (18 pp.) In this estate tax matter, the director moved for summary judgment on the ground that plaintiff’s refund claim is statutorily time-barred. Plaintiff-estate cross-moved for summary judgment on the ground that its recitation on its federal estate tax return of litigation involving the marital deduction amount put the director on notice of its protective claim for refund and tolled the running of the three-year period for the refund claim. The court grants the estate’s motion, holding that the estate’s notice of litigation served as notice of a potential refund claim because it adequately apprised the director of the litigated issue and of the estate’s undertaking to supplement its federal estate tax return on resolution of the litigation. The litigation was not resolved until after the expiration of the limitations period and there is nothing in the record to show that the estate had sufficiently final information to compute the marital deduction and file an amended estate tax return before the end of that period. Since a change in the marital deduction amount can alter the federal estate tax liability that can impact the federal credit for state death taxes, which credited the foundation for an assessment or refund of the New Jersey estate tax, the estate’s amended return was not untimely. [Filed April 2, 2013.]
35-2-9831 PT Capital, L.L.C. v. Sellen, App. Div. (per curiam) (7 pp.) Defendant appeals from the denial of her motion to vacate a default judgment in this tax lien foreclosure matter. The panel reverses, finding that where plaintiff knew that defendant did not reside at the Jersey City or Wayne properties that she owned and neither personal nor mail service of process was successful at those locations, and plaintiff knew that she had addresses in Hawthorne and Wyckoff, and mail service and personal service were unsuccessful at the Hawthorne property, regardless of whether defendant was evading personal service at the Hawthorne property, plaintiff had an address for her in Wyckoff and had to take the additional stop of serving her at that address by mail before resorting to substituted service by publication. Its failure to do so renders the default judgment void. [Decided May 3, 2013.]
35-2-9853 William L. Collins 1998 Trust v. Cresskill, App. Div. (per curiam) (11 pp.) Plaintiff filed this action under the Correction of Errors statute after it discovered that the property record card used for tax assessment purposes for the single-family residence it owns indicated that the home was 2,633 feet larger than as shown on the as-built plans filed with the borough. The trial court granted defendant’s motion for summary judgment, finding that the assessor used judgment in determining which numbers to use for tax-assessment purposes. The panel reverses, finding that the discrepancy was not the result of the tax assessor exercising judgment, expertise or discretion and, therefore, the grant of summary judgment to defendant was a mistake. [Decided May 6, 2013.]
35-5-9884 Burgundy Realty, L.L.C. v. Township of Piscataway, Tax Ct. (Sundar, J.T.C.) (8 pp.) Defendant moved to dismiss the complaint for plaintiff’s failure to respond to income and expense information requests, commonly known as a “Chapter 91” request. Plaintiff opposed the motion claiming that receipt of the Chapter 91 request by the taxpayer’s managing member was never effectuated because the return receipt card bears a signature that plaintiff does not recognize. The only issue is whether plaintiff’s alleged lack of receipt, although a return receipt card was signed, defeats the township’s motion and preserves plaintiff’s right to appeal the 2013 assessment. The statute does not require a return receipt but only that the Chapter 91 request be sent by certified mail. Thus, plaintiff’s contention that the “critical requirement” is for a Chapter 91 request to be sent via certified mail, return receipt requested, is incorrect. The court finds that plaintiff fully complied with the statutory requirements in making its Chapter 91 request, and it is undisputed that the Chapter 91 request was delivered to the proper address. Defendant’s motion to dismiss is granted subject to plaintiff’s right to a reasonableness hearing. [Decided May 3, 2013.]
36-2-9817 Estate of Koeberle v. Topping, App. Div. (per curiam) (8 pp.) Plaintiffs, individually and as executors of the estate of Juliana Koeberle, appeal from the summary judgment dismissal of their wrongful-death action against Holly Cedro. Koeberle was killed by an auto driven by Kyle Topping as she was crossing the street; Cedro had been traveling in the opposite direction. Plaintiffs alleged that Cedro was negligent in waving Koeberle across the street while she was stopped at a light. The panel affirms, finding that plaintiffs presented no evidence to establish that Cedro acted negligently prior to the accident. [Decided May 2, 2013.]
36-2-9869 St. George v. Woodbridge Twp. Bd. of Educa., App. Div. (per curiam) (7 pp.) After defendant-board was dismissed on summary judgment, plaintiff’s claim that defendant Colonia Girls Softball League’s negligent conduct caused her to fall on a sidewalk on school property, which was used by the league on evenings and Saturdays, went to trial and resulted in a judgment for plaintiff. The appellate panel reversed because the trial court had not presented special interrogatories to identify whether the jury found the league negligent because it failed to remove rocks that were on the walkway as the result of the league’s construction of a pavilion and it had actual and constructive knowledge of the rock on which plaintiff fell, or as a result of removing the construction tape around the area before construction was completed, or both, and the first theory regarding knowledge of the rock should not have been submitted to the jury because of insufficient evidence. On retrial, the league’s motion for an involuntary dismissal was granted. On appeal, the panel affirms, finding that the trial judge correctly concluded that the league’s failure to restrict the area through the use of tape could not constitute a proximate cause of plaintiff’s fall since, if the league cannot be held liable for the alleged hazardous condition near the pavilion, as was held in the prior appeal, it cannot be held liable for failing to take measures to keep pedestrians from strolling through that same area. [Decided May 7, 2013.]
36-3-9885 Roberts v. Herdman, Law Div. — Hunterdon Co. (Buchsbaum, J.S.C.) (7 pp.) Third-party defendant Faigle moves for summary judgment in her favor and against third-party plaintiffs, the members of the Herdman family, on their claims of trespass and intentional infliction of emotional distress. The court finds that the Herdmans have not sufficiently complied with the requirements of Rule 4:46-2(b) and Faigle’s facts are therefore deemed admitted for the purposes of the summary judgment motion and it grants Faigle’s motion, finding that the Herdmans have not shown a cause of action for IIED because there is no indication that any member of the Herdman family suffered any severe emotional distress as a result of Faigle’s actions. [Decided May 3, 2013.]
36-2-9818 Newton v. Sam’s Club, App. Div. (per curiam) (22 pp.) Defendant Sam’s Club appeals from a jury verdict finding it 70 percent liable for injuries sustained by plaintiff and from an order denying its motion for a new trial on damages or for remittitur. Plaintiff, a 72-year-old woman, was shopping at a Sam’s Club store when another customer, Chong, accidentally struck her with a flatbed cart loaded with boxes. The boxes were stacked so high that Chong could not see in front of him as he pushed the cart. A Sam’s Club employee had retrieved the merchandise for Chong and helped him load the cart. Plaintiff suffered a laceration to her leg, which left a 13-centimeter scar. Plaintiff sued Sam’s Club and Chong in negligence. Plaintiff’s expert, Dr. David Lessing, an orthopedic surgeon, diagnosed her with a “laceration to the posterior left calf or leg with altered sensation and a defect of the muscle tendon junction.” According to Dr. Lessing, plaintiff’s injury and scar were permanent. The jury awarded plaintiff $1 million in damages, apportioning liability 70 percent to Sam’s Club and 30 percent to Chong. The appellate panel affirms the judgment as to defendant’s liability. Finding the court failed to address the jury verdicts offered by the parties to show that, by comparison, the $1 million damage award was either grossly excessive or within the normal range, the panel remands the issue of damages to the Law Division. [Decided May 2, 2013.]
36-2-9854 Lau v. Lara, App. Div. (per curiam) (31 pp.) After an adverse jury verdict, defendant Seabring Associates, owner of the Excelsior apartment complex, appeals from the final judgment and several pre- and post-trial orders. On Dec. 27, 2006, plaintiff Henry Lau was struck and injured by an automobile operated by a hit-and-run driver. Twenty-year-old co-defendant David Figueroa was identified as the driver. Figueroa’s blood-alcohol concentration at the time was 0.192 percent. Immediately before striking Lau, Figueroa had been attending an after-hours, private swimming pool party at the Excelsior, where he had consumed alcoholic beverages. Co-defendants Gabriel Ortiz and Edgar Cobos were employed at the Excelsior. Seabring contends that it is entitled to a new trial on liability and fault allocation due to an accumulation of material errors. The appellate panel finds the parties and the court improperly fused disparate theories of liability, to the extent that jurors were presented with two inapposite theories: respondeat superior and social host liability. Also, in the context of the court’s jury charge and the opening and closing arguments of counsel, the jury was never asked to parse the differences between vicarious and primary liability. The panel affirms the evidentiary rulings of the trial court and the damages component of the final judgment, but reverses on the liability issues and remands to the Law Division for a new trial limited to liability and allocation of fault. [Decided May 6, 2013.]
38-2-9855 Cranmer v. Estate of Romeo, App. Div. (per curiam) (19 pp.) Plaintiff, pro se, appeals from the order granting summary judgment and dismissing her complaint challenging, on the ground of undue influence, the will of her father who left his entire estate to his son and nothing to plaintiff, his daughter, or her sister. The panel affirms, finding that although plaintiff raised genuine issues of material fact regarding the presence of a confidential relationship and the existence of suspicious circumstances, defendants have successfully rebutted the presumption of undue influence where the evidence showed, inter alia, that the father was of sound mind, had provided gifts to plaintiff and her sister during his lifetime, there was a strained relationship between plaintiff and her father, and the father exercised independence of thought. [Decided May 6, 2013.]
42-6-9834 In re Tarragon Corporation, U.S. Bank. Ct. (Steckroth, U.S.B.J.) (9 pp.) This proceeding was originally initiated by plaintiff 1200 Grand Street Association in the New Jersey state court, claiming damages arising from alleged construction defects in the association’s condominium building. Defendants, including the Tarragon entities, removed the matter to the district court, which then referred the case to the bankruptcy court, where the Tarragon entities had filed a Chapter 11 bankruptcy petition. Defendant Mount Hawley Insurance Company filed a motion to dismiss the complaint for failure to state a claim and, alternatively, to stay discovery for 60 days. The association filed a cross-motion seeking to compel Mount Hawley to tender a defense for the debtor Tarragon entities. The court entered a consent order between the association and the Tarragon entities that assigned the rights of Tarragon and its co-defendants’ rights in all of their insurance policies to the association. Here, the court grants Mount Hawley’s motion to dismiss, finding the assignment pursuant to the consent order granted only the right to assert a monetary claim based on a final judgment or settlement against the Tarragon entities and, even then, only for an amount in excess of liabilities covered by other insurers of Tarragon. Until such time that those amounts are fixed, Mount Hawley is not liable to the association for claims asserted on behalf of the Tarragon entities. Further, Mount Hawley does not have a duty to tender a defense for the Tarragon entities. Thus, one cannot be asserted by the association. As such, the plaintiff’s cross-motion is denied. [Filed April 16, 2013.]
42-6-9835 In re Tarragon Corporation, U.S. Bank. Ct. (Steckroth, U.S.B.J.) (10 pp.) This proceeding was originally initiated by plaintiff 1200 Grand Street Condominium Association in the New Jersey state court, claiming damages arising from alleged construction defects in the association’s condominium building. Defendants, including the Tarragon entities, removed the matter to the district court, which then referred the case to the bankruptcy court, where the Tarragon entities had filed a Chapter 11 bankruptcy petition. The court entered a consent order between the association and the Tarragon entities that assigned the rights of Tarragon and its co-defendants’ rights in all of their insurance policies to the association. Defendant Axis Surplus Insurance Company filed a motion to dismiss the complaint. Plaintiff filed a cross-motion seeking to compel Axis to assert a defense on behalf of the Tarragon entities. Assuming, arguendo, that the Tarragon entities are covered by the Axis policies, the court grants Axis’ motion to dismiss, finding the assignment pursuant to the consent order granted only the right to assert a monetary claim based on a final judgment or settlement against the Tarragon entities. Those claims are limited to seeking relief directly from Axis for a final judgment rendered against the Tarragon entities or a settlement with the written consent of Axis. Since Axis had no duty to defend the Tarragon entities, one cannot be asserted by the association. Plaintiff’s cross-motion is denied. [Filed April 16, 2013.]
42-6-9870 In re Big M Inc., U.S. Bank.Ct. (Steckroth, U.S.B.J.) (2 pp.) Finding that, although courts have recognized that a debtor’s right to assert or waive the attorney-client privilege against discovery is passed to the estate or an appointed trustee on filing for bankruptcy, or the subsequent appointment of a trustee, such a power does not extend to a creditors’ committee that asserts causes of action on behalf of the estate, the court holds that the committee cannot direct the debtor, through waiver, to produce or share communications that would otherwise be protected from disclosure by privilege. [Filed April 17, 2013.]
07-7-9871 Finecountry v. M.T. Trading, U.S. Dist. Ct. (McNulty, U.S.D.J.) (2 pp.) Plaintiffs seek a preliminary injunction and temporary restraining order preventing M.T. Trading from withdrawing $68,346.50 electronically transferred by plaintiffs to a Bank of America account allegedly owned and operated by M.T. Trading, and its eventual return to plaintiffs. Because the complaint is fatally flawed, since it does not attempt to state a claim arising under the constitution or laws of the United States and the amount in controversy is clearly less than the $75,000 required to invoke federal jurisdiction, the court denies plaintiffs’ motion for a preliminary injunction and temporary restraining order. [Filed April 16, 2013.]
07-7-9872 Deluxe Building Systems Inc. v. Constructamax Inc., U.S. Dist. Ct. (McNulty, U.S.D.J.) (14 pp.) This consolidated action arises out of the unsuccessful attempt to construct a rental housing development in Jersey City. The parties include Whitlock Mills, the owner of the housing development, Constructamax, the general contractor, Arch Insurance Co., Cmax’s surety, Deluxe, the subcontractor that was to supply prefabricated modular buildings, Travelers Casualty & Surety Co. of America, Deluxe’s surety, and the New Jersey Housing and Mortgage Finance Agency, which was funding the project. Arch moves to dismiss, arguing that the presence of intervenor NJHMFA destroys diversity subject-matter jurisdiction because Arch and the agency are both New Jersey citizens and requires that the consolidated cases be dismissed in their entirety. The court grants Arch’s motion to the extent it seeks to dismiss the Deluxe action but denies the motion to the extent that it seeks to dismiss the Whitlock action. It finds that the supplemental jurisdiction statute is asymmetrical — the availability of supplemental jurisdiction depends on whether the agency is a plaintiff, and that jurisdiction may be asserted in the Deluxe action in which the agency is a defendant. However, the Whitlock action must be dismissed because the agency is a plaintiff in that action. The court notes that in the end, it makes little difference because Whitlock asserts its dismissed claims in the Deluxe action and the agency asserts the dismissed claims in the Deluxe action in its capacity as defendant. Thus, the parties’ claims remain before the court. [Filed April 19, 2013.]
07-7-9819 Phillips v. Berenato, U.S. Dist. Ct. (Kugler, U.S.D.J.) (5 pp.) On Oct. 10, 2012, plaintiff filed this action seeking compensation for injuries she claims to have sustained in a 2010 motor vehicle accident. Prior to filing this suit, plaintiff filed a nearly identical complaint in the Superior Court of New Jersey. One month after plaintiff filed her federal complaint, defendant filed this motion to dismiss, arguing that the court should decline to hear the case under the doctrine of Younger abstention. After initially declining to oppose the motion, plaintiff filed a motion for leave to respond to defendant’s motion four months after the original motion was filed. Plaintiff’s motion for leave to reply is denied and the court will consider the motion unopposed. Nonetheless, because Younger and its progeny require federal courts to abstain from entertaining suits that would interfere with pending state court proceedings and this federal proceeding would parallel, but not interfere, with the state proceeding, the court denies defendant’s motion to dismiss. [Filed April 15, 2013.]
07-7-9873 Hilburn v. Bayonne Parking Authority, U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (6 pp.) After summary judgment was granted in favor of defendants and plaintiffs’ counsel was ordered to pay $4,851 in sanctions for violation of Fed. R. Civ. P. 11, plaintiffs filed a timely appeal with the Third Circuit. They now move to stay enforcement of judgment pending the Third Circuit’s decision. Finding that plaintiffs are entitled to a stay pending appeal as a matter of right pursuant to Fed. R. Civ. P. 62(d), but that they are not entitled to a waiver of the requirement that they post a supersedeas bond because they have not shown exceptional circumstances and that an alternative means of securing the judgment exists, the court grants the motion provided that plaintiffs post a $10,000 bond to cover the judgment in full plus costs and interest. [File April 19, 2013.]
46-7-9858 Brandt v. Hogan, U.S. Dist. Ct. (Wolfson, U.S.D.J.) (24 pp.) Plaintiff, pro se, a civilly committed mental patient, brings this action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights. Plaintiff’s claims arise from his placement in Ann Klein Forensic Center (AKFC). Defendants move for summary judgment and plaintiff moves for partial summary judgment. With respect to his claim of wrongful isolation, Plaintiff alleges that he lives under “inhumane conditions” at AKFC by being confined to his room for the majority of the day and night. Defendants’ failure to rebut plaintiff’s allegation that he is locked in his room during daytime hours — and their concession that plaintiff is locked in his room overnight — coupled with their failure to provide an explanation for the policy of locking patients in their rooms during census counts precludes granting summary judgment to defendants as to the wrongful-isolation count. At the same time, plaintiff has failed to demonstrate that the decision to lock patients in their rooms during the census counts is not the product of professional judgment, such that it can be deemed a constitutional harm. With regard to treatment, plaintiff alleges that the members of his treatment team fail to make a bona fide effort to provide treatment appropriate to his mental condition. Defendants have not shown that plaintiff is actually receiving treatment by qualified medical personnel. Because the court here determines that plaintiff should be appointed counsel, who may retain experts on the issue of treatment, summary judgment would deny plaintiff the opportunity to adequately present his claims. The court finds summary judgment is inappropriate and denies both motions without prejudice. [Filed April 18, 2013.]
46-7-9874 Hasher v. Hayman, U.S. Dist. Ct. (Dickson, U.S.M.J.) (5 pp.) This matter comes before the court on its own initiative to consider the appointment of pro bono counsel for pro se plaintiff. Plaintiff, an involuntary civilly committed person pursuant to the Sexually Violent Predator Act (SPVA), alleged in his complaint that he was either ignored or denied surgery for a malignant melanoma on his face for at least 16 months. Plaintiff asserted five claims: deliberate indifference to his medical needs; violation of his rights to free speech and access to the courts; conspiracy to deprive plaintiff of his medical treatment; failure to provide plaintiff the rights enumerated in the New Jersey Patient Bill of Rights; and breach of contract with defendant Correctional Medical Services by failing to provide adequate medical treatment. The court finds plaintiff’s case has merit. Although the motions and applications filed by plaintiff demonstrate that he has consulted the rules, statutes and some case law, he lacks the legal training to effectively present his case in federal court. The court finds the potential need for expert testimony and credibility determinations weigh in favor of appointment of counsel. The court shall sua sponte appoint pro bono counsel for plaintiff. [Filed April 22, 2013.]
10-8-9836 Rizzo v. Connell, Third Cir.(McKee, U.S.C.J.) (3 pp.) Rizzo appeals from the district court’s order denying his motion for relief from a final judgment. Rizzo conceded that his claims against the defendants in their official capacities are barred under the Eleventh Amendment. Accordingly, the court granted judgment in favor of the defendants in their official capacities. In doing so, the court also held that the remaining claims cannot succeed because the defendants are entitled to qualified immunity insofar as Rizzo alleges they were acting in their individual capacities. The district court carefully and thoroughly explained its basis for concluding that Rizzo could not establish that his constitutional rights were violated by any actions of the defendants acting in their individual capacities. The circuit panel affirms the district court’s order denying reconsideration of its grant of judgment on the pleadings. [Filed April 17, 2013.]
11-7-9859 Aetrex Worldwide Inc. v. Sourcing For You Limited, U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (13 pp.) In this action alleging that defendant is in breach of a noncompete provision in the parties’ supply agreement under which defendant would manufacture certain orthotics for plaintiff and plaintiff guaranteed certain minimum purchases, the court denies plaintiff’s motion for temporary restraints and defendant’s motion to stay, finding that while plaintiff has shown it is likely to succeed on the merits of the breach-of-contract claim, although the court is not convinced that it could succeed on an unfair-competition claim, plaintiff has not met its burden of showing that it will suffer irreparable harm if a preliminary injunction in not entered since it has not shown that the loss of good will and customer relationships it alleges to be suffering cannot be remedied with monetary damages. [Filed April 16, 2013.]
11-7-9860 Bellator Sport Worldwide, L.L.C. v. Alvarez, U.S. Dist. Ct. (Linares, U.S.D.J.) (9 pp.) This action asserting claims for breach of contract and tortious interference arises out of a promotion agreement entered into between plaintiff, a mixed martial arts fighter, and defendant that contained a right of first refusal provision giving defendant the right to match any agreement plaintiff might reach with another promoter after expiration of the parties’ agreement. Plaintiff filed the action after defendant failed to sign its proposed contract that purportedly matched a third-party offer. The court denies plaintiff’s motion to dismiss defendant’s counterclaim for tortious interference with prospective economic advantage because accepting the validity of plaintiff’s argument that it did not act in bad faith by purporting to match the terms of the third-party offer when it had neither the ability nor the willingness to do so would require the court to make a factual determination that it had a legitimate business-related justification for proposing a purportedly matching contract and it would be inappropriate for the court to make a factual determination at this stage and because plaintiff’s provision of a proposed contract to defendant’s counsel is not prelitigation correspondence that is privileged. The court denies plaintiff’s motion to dismiss defendant’s counterclaim of breach of contract because, to the extent it is based on the proffer of a matching contract, the proffer is not privileged litigation, and because the claim does not fail to specify which contract plaintiff allegedly breached. [Filed April 16, 2013.]
15-7-9837 Pereira v. Azevedo, U.S. Dist. Ct. (Linares, U.S.D.J.) (17 pp.) Plaintiff alleges that Lurdes Azevedo, a family friend, asked plaintiff and her husband to co-sign a loan for Lurde’s son, John Azevedo. According to the complaint, John assured plaintiff that he would repay the loan and Lurdes also assured plaintiff that if John was unable to repay the loan, she would repay it. Believing that she and her husband were merely co-signing a loan for John, plaintiff agreed. John and Lurdes presented plaintiff with documents purporting to be loan papers from defendant Wachovia Bank. Unbeknownst to plaintiff, the documents resulted in John obtaining a line of credit against plaintiff’s home of $100,000. The loan was funded by Wachovia Bank. Plaintiff alleges that plaintiff never authorized John or Lurdes Azevedo to negotiate with Wachovia on her behalf, nor did plaintiff authorize Wachovia to negotiate with anyone on her behalf. When plaintiff discovered the line of credit, Lurdes informed plaintiff that John had filed for bankruptcy and would not pay back the debt. Lurdes also indicated that she would not pay the debt. Plaintiff filed suit against John Azevedo, Lurdes Azevedo, Wachovia Bank and Grace Tavares, an alleged Wachovia employee. Plaintiff alleges that the Azevedos conspired with Wachovia to defraud her. Due to the pleading deficiencies in plaintiff’s complaint, the court grants Wachovia Bank’s motion to dismiss without prejudice. [Filed April 17, 2013.]
15-7-9861 Astarita v. Solomon & Solomon, P.C., U.S. Dist. Ct. (Martini, U.S.D.J.) (5 pp.) Plaintiff alleges that defendant Solomon & Solomon is a “debt collector,” as defined by the Fair Debt Collection Practices Act (FDCPA). Plaintiff’s one-count complaint alleges that defendant various provisions of the FDCPA. Plaintiff’s complaint is utterly devoid of any factual content — such as the specific debt that defendant attempted to collect on, or details about the dates, times and manner of the communications defendant made to plaintiff in attempting to collect on that unspecified debt — which would allow the court to draw the reasonable inference that defendant’s actions violated any provision of the FDCPA. Because plaintiff’s threadbare formulaic recitation of the elements of an FDCPA claim is insufficient, defendant’s motion to dismiss is granted. [Filed April 18, 2013.]
14-7-9893 United States v. Fortuna, U.S. Dist. Ct. (Hillman, U.S.D.J.) (22 pp.) The Contraband Cigarette Trafficking Act (CCTA) criminalizes the shipment, transport, receipt, possession, sale, distribution and purchase of contraband cigarettes. The indictment in this matter charges defendants with the unlawful purchase and distribution of more than 10,000 contraband cigarettes. Over the course of 18 months, fefendants purchased 253,741 cartons of contraband cigarettes from ATF agents. Defendants sold the cigarettes in their respective stores, or resold them to other retail distributors. The tax loss to New Jersey as a result of the conspiracy is alleged to be $6,851,655. Defendants filed an omnibus motion to dismiss the indictment asserting that the ATF agents’ conduct during the sting operation violated the clear language of the CCTA; and the manner in which the undercover operation was carried out was so outrageous as to constitute a violation of their due process rights. The court finds the government’s conduct was neither shocking nor offensive to traditional notions of fundamental fairness. The government did not serve as the mastermind of the criminal enterprise, nor was it primarily responsible for the scheme’s execution. Defendants were not lawfully and peacefully minding their own affairs when the government stepped in; the evidence strongly suggests that criminal activity was already under way at the point of the government’s initial contact with one of the defendants. The court cannot find that the Due Process Clause was violated and, accordingly, denies defendants’ motion to dismiss the indictment. [Filed April 22, 2013.]
14-7-9844 Prall v. Supreme Court, U.S. Dist. Ct. (Simandle, U.S.D.J.) (24 pp.) Plaintiff-state prison inmate filed this pro se 42 U.S.C. § 1983 against numerous defendants, including the Supreme Court, the Appellate Division, the Law Division, the governor, prosecutors, the commissioner and numerous employees of the Department of Corrections, and numerous judges and sheriff’s officers, arising out of his conscientious objection to the criminal justice system and his incarcertion. Plaintiff’s claims of excessive force and failure to protect in violation of the Eighth Amendment are allowed to proceed against defendants John Does 1-4; the same claims are dismissed without prejudice as against the Mercer County Sheriff’s officers for failure to state a claim. His claim of ongoing physical abuse and torture asserted against defendants John Moes 1-99, Commissioner Lanigan and Administrator Warren will be dismissed as they are duplicative of similar claims asserted in plaintiff’s earlier, pending action and more properly should have been pleaded in that action by supplemental pleading with leave of court. The complaint is dismissed with prejudice in its entirety as against all remaining defendants, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii), (iii) and 1915A(b)(1) and (2). [Filed April 4, 2013.]
16-7-9838 J.T. v. Newark Bd. of Educa., U.S. Dist. Ct. (Wigenton, U.S.D.J.) (13 pp.) In this action seeking reversal of an administrative law judge’s final decision holding that defendant had not violated the Individuals with Disabilities Education Act or the Rehabilitation Act of 1973 when it declined to provide a resource-in-class support program at the school closest to J.T.’s home and required her to attend another school in the district to obtain that service, the court grants defendant’s motion seeking affirmance of the ALJ’s decision, finding that the district is not required to implement the RIC program at the school closest to J.T. and that districts have significant authority to determine the school site for providing IDEA service. [Filed April 5, 2013.]
23-7-9839 State Farm Indemnity Co. v. United States, U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (5 pp.) Plaintiff filed this action for reimbursement of personal-injury protection benefits that it paid on behalf of one of its insureds who was involved in an auto accident with a United States Postal Service vehicle. The court denies the motion with prejudice because, in bringing a claim under N.J.S.A. 39:6A-9.1 for PIP benefits, plaintiff has sued the government as an insurer and the government has not waived its sovereign immunity to be sued as an insurer. Therefore, the court lacks subject-matter jurisdiction. [Filed April 4, 2013.]
23-7-9875 Riggs v. Metropolitan Life Insurance Company, U.S. Dist. Ct. (Rodriguez, U.S.D.J.) (24 pp.) This case concerns the death of plaintiff’s husband, Terry Riggs. Plaintiff brought this suit pursuant to the Employee Retirement Income Security Act (ERISA), challenging defendant Metropolitan Life Insurance Company’s denial of her application for optional life insurance benefits based on the insurance policy’s “suicide clause.” Before the court are the parties’ motions for summary judgment. Plaintiff argues that the court should reverse MetLife’s decision because the claim administrator abused her discretion when applying the “suicide clause,” as Mr. Riggs’ death was not a “suicide” under the meaning of the insurance policy. MetLife argues that the court should uphold the claim administrator’s decision because she did not abuse her discretion in denying the claim. Plaintiff offered a report issued by Dr. Ronald Maris, a board-certified forensic suicidologist who reviewed Mr. Riggs’ case. Dr. Maris opined that Mr. Riggs shot himself in response to command hallucinations caused by ingestion of a prescribed combination dosage of two drugs that have been increasingly linked to suicidal behavior. While finding the facts of this case do not fall into the realm of circumstances contemplated by insurance companies when writing a suicide-exclusion clause, the court must defer to the plan administrator’s interpretation unless it is unreasonable. Because the court finds that MetLife’s interpretation of “suicide” is not unreasonable, Plaintiff’s motion for summary judgment is denied and MetLife’s cross-motion for summary judgment is granted. [Filed April 18, 2013.]
23-8-9887 Holiday Village East Homeowner’s Association v. QBE Corp., Third Cir. (McKee, U.S.C.J.) (4 pp.) On plaintiff’s appeal, the Third Circuit affirms the district court order denying relief to alter or amend a grant of final judgment and denying leave to file a second amended complaint, holding that there was no basis for the district court to find that HVE stated, or can state, a claim for relief because the policy’s “collapse” provision unambiguously excludes coverage for HVE’s claim. [Filed April 22, 2013.]
53-7-9840 Ferring Pharmaceuticals Inc. v. Watson Pharmaceuticals, U.S. Dist. Ct. (Cavanaugh, U.S.D.J.) (11 pp.) In this action between pharmaceutical companies that market competing products used for in vitro fertilization, in which plaintiff asserts a false advertising claim under the Lanham Act, plaintiff moves for a preliminary injunction to enjoin defendant from further statements and for corrective advertising. The court denies the motion, finding that plaintiff has not alleged facts sufficient to prove that it was harmed or that the alleged harm was irreparable and could only be cured by a preliminary injunction. [Filed April 4, 2013.]
53-7-9888 Malibu Media, L.L.C. v. John Does 1-22, U.S. Dist. Ct. (Chesler, U.S.D.J.) (8 pp.) The instant action is one of many similar internet copy infringement actions in which Plaintiff claims that the defendants, identified only by internet IP address and not by name or address, used a common peer-to-peer file sharing protocol to infringe on Plaintiff’s copyrighted works (the “Works”). John Doe Defendants argue, inter alia, that they are improperly joined as defendants because the instances of accessing Plaintiff’s Works did not arise from a single transaction or occurrence required by Rule 20, but rather happened on different dates and times. The recent authority in this District has found joinder in this context inappropriate, and judges have either ordered or recommended severance and dismissal of all claims against all defendants other than one defendant, usually John Doe # 1. Here, in the interests of judicial economy, the Court grants the motions by John Doe Defendants to the extent they seek severance and dismissal and sua sponte severs the remaining John Doe Defendants except for John Doe 1, without prejudice to Plaintiff to re-file its claims in separate actions. The motions to quash the subpoenas issued to internet service providers (“ISPs”) are granted, without prejudice, for all defendants other than John Doe # 1 since they are no longer parties to this action. [Filed April 19, 2013.]
53-7-9821 Telebrands Corp. v. National Express Inc., U.S. Dist. Ct. (Hochberg, U.S.D.J.) (13 pp.) Defendants move to dismiss Telebrands Corp.’s complaint seeking a declaratory judgment of noninfringement and invalidity of Blue Gentian’s patents, the ’941 patent and the ’942 patent. Telebrands is a New Jersey corporation with its headquarters in New Jersey. Blue Gentian, L.L.C., is a limited liability company organized under Florida law and owned by its managing member, Michael Berardi, a resident of Florida. National Express Inc. (NEI) is a Connecticut corporation with its principal place of business in Connecticut. Telebrands is a direct marketing company. Berardi is the sole inventor for the ’941 and ’942 patents. Blue Gentian is the assignee of all right and interest in the ’941 and ’942 patents. NEI is a licensee of the patents-in-suit from Blue Gentian. Since the parties produce potentially competing products, the patents-in-suit have issued, and defendants declared their intent to pursue an infringement action, there is a substantial controversy so the Court can exercise subject-matter jurisdiction. Since the parties have an extensive licensing agreement that extends beyond merely profit-sharing, Blue Gentian has purposefully availed itself of the privilege of conducting activities in New Jersey and specific personal jurisdiction exists. Although the patents are owned by Florida companies, Telebrands is a New Jersey corporation and its potentially infringing product is manufactured in New Jersey. Thus, venue is proper. Defendants’ motion to dismiss is denied. [Filed April 11, 2013.]
53-7-9822 Jazz Pharmaceuticals Inc. v. Roxane Laboratories Inc., U.S. Dist. Ct. (Mannion, U.S.M.J.) (9 pp.) Plaintiff Jazz Pharmaceuticals Inc. filed a motion to consolidate this case with earlier filed actions, which defendant Roxane Laboratories Inc. opposes. This is an action for patent infringement arising from Roxane’s filing of ANDA No. 202-090 seeking approval to commercially market a generic version of Jazz’s drug product prior to the expiration of patents owned by Jazz. Since Jazz filed its initial complaint, two other actions have been consolidated with this matter. The patents-in-suit, the ’431, ’889, ’219, ’506 (the ’431 patent family), as well as the ’650 patent that Jazz seeks to consolidate in this motion, contain claims related to sodium oxybate, and methods of use and administration of pharmaceutical compounds containing sodium oxybate. In seeking consolidation of its lawsuit alleging infringement of the ’650 patent with its earlier lawsuits, Jazz contends the ’650 patent contains claims that are substantially similar to the patents in the ’431 patent family. In light of this alleged overlap of infringement and invalidity issues, Jazz asserts that consolidation is appropriate. Roxane contends that consolidation is inappropriate because the claims of the patents within the ’431 family are different from those of the ’650 patent, and consolidation would not streamline pretrial proceedings. While some delay in the ’650 patent proceedings may result, the court finds that there is substantial overlap among the patents that Roxane is alleged to have infringed, and that consolidation is appropriate. [Filed April 12, 2013.]
53-7-9823 Teva Neuroscience Inc. v. Watson Laboratories Inc., U.S. Dist. Ct. (Cecchi, U.S.D.J.) (20 pp.) This matter comes before the court by request for claim construction. The parties sought the court’s interpretation of disputed terms in U.S. Patent No. 5,453.446 (the ’446 patent). The ’446 patent claims a method of treating a patient with Parkinson’s disease by administering to the patient an effective amount of a particular compound. A Markman hearing was held and here the court sets forth its construction of the disputed terms. [Filed April 12, 2013.]
25-7-9841 Treusch v Center Square Supermarket, L.L.C., U.S. Dist. Ct. (Simandle, U.S.D.J.) (11 pp.) In this action arising out of plaintiff’s termination and the union’s alleged failure to adequately represent him and asserting claims for breach of contract, breach of fiduciary duty and gender discrimination in violation of the New Jersey Law Against Discrimination, plaintiff moves for reconsideration of the summary judgment dismissal of his case with prejudice. Plaintiff also seeks an order allowing him to amend his complaint postjudgment to allege age and race discrimination. The court denies reconsideration because plaintiff has put forth no new evidence, there has been no intervening change in the law and plaintiff has not shown that dispositive factual matters or controlling decisions were not considered. The motion for leave to amend is denied because it was filed almost one year after the deadline for filing such a motion and plaintiff has not attempted to show good cause to amend the scheduling order deadline, his delay in seeking to amend is undue, defendants would be substantially prejudiced if plaintiff were permitted to amend at this late juncture, and the values of expeditious termination of litigation and the finality of judgments would be rendered meaningless if the case were reopened for new claims after issues were joined and the case was adjudicated. [Filed April 5, 2013.]
25-7-9862 Bourhill v. Nextel of New York Inc., U.S. Dist. Ct. (Linares, U.S.D.J.) (17 pp.) Plaintiff alleges that defendant failed to accommodate him, failed to consider accommodating him, and wrongfully terminated him, all in violation of the New Jersey Law Against Discrimination. The parties filed cross-motions for summary judgment on each claim. The court finds that Sprint is entitled to summary judgment on the claims of failure to accommodate and failure to consider accommodations prior to termination because Sprint made a good-faith effort to assist plaintiff with identifying a reasonable accommodation because it engaged in a good-faith effort to assist plaintiff, granting four separate extensions of his leave of absence totally eight months, and only terminated him after it became clear that he would not be able to return to work for what was then an indefinite period of time. Sprint is also entitled to summary judgment on the wrongful-termination claim because Sprint has proffered a legitimate nondiscriminatory reason for terminating plaintiff — his inability to return to work for nearly a year and the absence of reasonable accommodations — and plaintiff has failed to identify any evidence from which it could be concluded that the reason was pretextual. The court also finds that plaintiff’s supervisor is entitled to summary judgment in his favor because plaintiff failed to produce evidence to support a finding that he aided or abetted Sprint’s alleged unlawful conduct. [Filed April 17, 2013.]
25-7-9876 Davis v. Supervalu Inc., U.S. Dist. Ct. (Simandle, U.S.D.J.) (16 pp.) This action arises out of plaintiff’s employment with defendant Supervalu Inc., d/b/a Acme Markets, and subsequent termination. Plaintiff brings three claims against defendant Supervalu arising from her discharge. Count one alleges age discrimination in violation of the New Jersey Law Against Discrimination (NJLAD). Count two alleges retaliation for having filed a workers’ compensation claim in violation of the New Jersey Conscientious Employee Protection Act (CEPA) and the NJLAD. Count three alleges a common-law wrongful discharge in violation of public policy. Defendant Supervalu now moves to dismiss counts two and three. Count two will be dismissed with prejudice because any amendment would be futile since filing a workers’ compensation claim is not protected activity under the NJLAD or CEPA. To the extent count three alleges wrongful discharge because of discrimination, this claim is dismissed with prejudice as it is pre-empted by the NJLAD. To the extent count three alleges wrongful discharge in retaliation for filing a workers’ compensation claim, this claim will be dismissed without prejudice to plaintiff filing a motion to amend to allege sufficient facts to state a viable wrongful-discharge claim. [Filed April 19, 2013.]
25-8-9889 Newton-Haskoor v. Coface North America, Third Cir. (Hardiman, U.S.C.J.) (8 pp.) Plaintiff Newton-Haskoor’s complaint alleges that she began working for Coface North America Inc., a collection company, in 2006. She was promoted to branch manager in 2009 and began supervising consultant Frank Trezza. Newton-Haskoor alleged that Trezza would not take directions from her because she was a woman. She also claimed that female employees approached her with complaints of sexual discrimination and harassment involving Trezza. Newton-Haskoor notified human resources and management about these problems, but Coface took no action. Frustrated by Trezza’s insubordination and Coface’s lack of support, Newton-Haskoor requested and was granted a transfer to New Jersey. In late 2010, Newton-Haskoor discovered some discrepancies in the reporting of payments in Coface’s bookkeeping systems. Newton-Haskoor did not allege that she reported these discrepancies to anyone or that she refused to participate in actions that she believed were wrongful. Newton-Haskoor was terminated from her position in January 2011 because she had sent proprietary company information to her father, a former Coface employee who intended to start a collection company. Newton-Haskoor filed suit alleging violations of Title VII of the Civil Rights Act of 1964, and New Jersey’s Conscientious Employee Protection Act (CEPA). Finding Newton-Haskoor failed to plead sufficient facts to give rise to a plausible claim under either Title VII or CEPA, the circuit panel affirms the district court’s dismissal of her complaint. [Filed April 19, 2013.]
25-7-9890 Hill v. Commerce Bancorp, U.S. Dist. Ct. (Schneider, U.S.M.J.) (10 pp.) In this action alleging that defendant failed to pay contractual severance payments, interest and fees totaling more than $20 million due under plaintiff’s employment agreement, plaintiff, who formerly ran defendant’s bank, moves for leave to amend the joint final pretrial order to name three new witnesses and three new exhibits due to information allegedly gathered at the most recent depositions. The court grants the motion to add the exhibits, finding that manifest injustice will result if plaintiff is not permitted to use the new exhibits at trial, that the exhibits were available earlier is not determinative, defendant has not alleged that it will be prejudiced by plaintiff’s amendment, and the exhibits will not result in additional discovery, lengthen the trial, or delay its scheduled start. The request to add the witnesses is denied because there is an adequate substitute to their live testimony. Plaintiff’s request to compel certain discovery is also granted. [Filed April 19, 2013.]
25-7-9842 Sportscare of America, P.C. v. Multiplan Inc., U.S. Dist. Ct. (Martini, U.S.D.J.) (19 pp.) Plaintiff Sportscare of America filed this action alleging that defendants violated the Employee Retirement Income Security Act of 1974 (ERISA), breached their fiduciary duties, and breached their duties to act in good faith. Plaintiff filed this ERISA action to enforce the terms of various health-care plans insured or administered by defendants. The gravamen of plaintiff’s second amended complaint is that defendants underpaid plaintiff by paying plaintiff as an “in-network” provider instead of an “out-of-network” provider. Here, the court grants the motion for summary judgment filed by Christian Brothers, the motions to dismiss filed by the Government Employees Health Association Inc. defendants; and the motion for summary judgment filed by Health Net Inc. The Tower defendants, which include defendants Tower, Guardian, Principal, Local 15, IDA, Coventry and Nippon, are traditional health-care payors. In this case, defendant Multiplan Inc. was the only relevant decision-maker. Sportscare was only required to exhaust the administrative remedies provided by Multiplan, and did, in fact, do so. Because the court finds that Sportscare exhausted the relevant administrative remedies, the Tower defendants’ motions for summary judgment are denied. [Filed April 17, 2013.]
04-7-9891 United States v. The Cooper Health System, U.S. Dist. Ct. (Irenas, S.U.S.D.J.) (35 pp.) Relator Nicholas DePace retained the law firm of Pietragallo, Gordon, Alfano, Bosick & Raspanti to initiate this qui tam action alleging the defendant paid illegal kickbacks to physicians to induce them to refer patients to Cooper for expensive cardiac services that resulted in false claims because Cooper billed Medicare and Medicaid for services resulting from the tainted referrals. He executed a contingency fee agreement. The action resulted in a settlement that also contained provisions regarding attorney fees. He now moves for emergent relief to reopen pursuant to L. Civ. R. 41.1(b) and for a determination of reasonableness of attorney fees pursuant to Rule 103.1(a), arguing that the firm is not entitled to the fees it is owed under the contingency fee agreement because the settlement supersedes that agreement. The court grants the application to reopen but denies the requested relief, finding that (1) the contingency fee agreement governs what DePace as the prevailing party must pay the firm, while the settlement governs what Cooper, as the losing defendant, must pay under the fee-shifting provisions of the Federal False Claims Act and, thus, the settlement does not modify any of the terms in the contingency fee agreement; (2) the Federal False Claims Act allows for an attorney to recover both statutory and contingency fees; (3) the total fee received by the firm is reasonable under Rule 1.5(a); (4) no New Jersey law or ethical rule prohibits the firm from receiving both a statutory and contingent fees. [Filed April 22, 2013.]
34-7-9843 U.S. Bank, National Association v. Cobalt Realty, L.L.C., U.S. Dist. Ct. (Cooper, U.S.D.J.) (8 pp.) Plaintiff filed this mortgage foreclosure action against Cobalt and its sole managing partner, Steve Kogut, after Cobalt defaulted on a promissory note secured by a mortgage and guaranteed by Kogut. Defendants moved to enforce a purported settlement under which the bank agreed to extinguish any actual or potential claims against Kogut, including those relating to a separate environmental indemnity agreement Cobalt and Kogut had executed in favor of the bank’s predecessor in interest. Plaintiff objects to the magistrate judge’s report and recommendation finding that the parties had reached an enforceable settlement that released Kogut from liability under the EIA. The court conducts a de novo review and concludes that the record shows that the parties entered into a valid and binding agreement to settle that included extinguishment of Kogut’s liability under the EIA, adopts the report and recommendation, and grants the motion. [Filed April 16, 2013.]
36-7-9863 Clark v. Wells Fargo Bank, U.S. Dist. Ct. (Linares, U.S.D.J.) (7 pp.) In this action asserting various tort claims and seeking damages arising out of the Office of the Comptroller’s allegedly reckless conduct in failing to ensure that Wells Fargo Bank was financially sound and complied with applicable banking laws and the attorney general’s and U.S. Attorney Fishman’s allegedly negligent political corruption and obstruction of justice in failing to investigate plaintiff’s complaint. The court grants defendants’ motion to dismiss, finding that it lacks subject-matter jurisdiction because plaintiff did not file an administrative claim as required by the Federal Tort Claims Act and because defendants’ alleged acts and omissions fall within the discretionary-function exception to the FTCA. [Filed April 15, 2013.]
36-7-9892 Mock v. Wal-Mart Stores, East, L.P., U.S. Dist. Ct. (Irenas, S.U.S.D.J.) (10 pp.) In this action alleging that Wal-Mart negligently maintained the premises such that plaintiff was caused to trip on a piece of metal, in which Wal-Mart filed a third-party complaint against Unarco Industries, L.L.C., which supplied its shopping carts, claiming that the metal was of the type typically attached to the shopping carts and asserting claims for negligence, products liability, breach of warranty, and contractual and common-law contribution and indemnification, Unarco moves to dismiss the amended third-party complaint. The court denies the motion because (1) the claims for negligence, strict liability and breach of warranty are classic derivative liability claims; (2) applying Arkansas law, which governs interpretation of the Wal-Mart-Unarco agreement, Wal-Mart’s claim, which directly implicates negligence on Unarco’s part, falls within the agreement’s indemnification provision; and (3) Wal-Mart’s pleadings are sufficient to sustain its contribution claim. [Filed April 19, 2013.]